Immigration
law is complex, changes frequently and it is vital to meet deadlines and follow
correct procedures in order to preserve your legal rights. For that
reason, if you or anyone you know is facing a problem concerned with this area
of the law, you must seek expert advice at the earliest possible opportunity.
See More information and advice on HIV
and the law for contact details of services that can help.

UK
immigration law is governed by the Immigration
Act 1971. This has since been amended by newer pieces of legislation,
most recently the Borders, Citizenship
and Immigration Act 2009. Immigration law applies across all the
countries in the UK.

Immigration
Rules set out the different categories of people who will be allowed to
enter or remain in the UK, and conditions of their entry and stay; for example,
whether and how much they can work and their permitted length of stay. These
rules are regularly updated and changed.

Only British
citizens and Commonwealth citizens with the right to live in the UK, nationals
of member states of the European Economic Area (EEA) and Switzerland, and their
dependants, whether EEA nationals or not, are entitled to enter the UK. All
other people are “subject to immigration control” and need permission to enter
and stay.

The rules allow
people to enter or remain in the UK for a myriad of reasons including as
visitors, students, workers, business people, retired persons, innovators,
highly skilled migrants, asylum seekers and many more. There are detailed rules
allowing family members of people already here to join them. These include
provision for spouses and for unmarried partners, including same-sex partners,
where a relationship has existed for at least two years. The rules contain
nothing specific on people with HIV.

This
section provides a brief overview of immigration and asylum law as it affects
people with HIV. It is, however, in no way a comprehensive statement of
the law and is no substitute for specialist advice. Seek expert advice at
the earliest possible opportunity. See More
information and advice on HIV and the law for contact details of services
that can help.

The relevance of being HIV positive

Neither
the legislation nor the Immigration Rules
specifically mention HIV. The UK has not adopted a ban on persons with HIV
entering the United Kingdom, unlike a small number of other countries
(including, most significantly, the USA). HIV-positive status may nevertheless
be relevant to asylum and immigration decisions, depending on the type of
decision concerned and the situation of the individual concerned. It is
essential here to distinguish between different categories of persons.

There
are, essentially, two questions: first, can being HIV positive or having been
diagnosed with AIDS be a barrier to entering the UK? And secondly, where a
person is already in the UK, can being HIV positive or diagnosed with AIDS be a
reason which justifies continuing to remain in the UK when that individual
would otherwise be required to leave?

People not subject to UK immigration law

Most
obviously, British citizens are not subject to immigration law. Nor are
citizens of other states within the European Economic Area (EEA), who have
specific rights of entry to the UK. Certain Commonwealth citizens also have a
“right of abode” (the right to live) in the UK. For these people, being HIV positive
should not affect entry into the UK.

Any
other person, however, requires leave to enter the UK.

Leave to enter the UK and HIV-positive status

Where a person requires leave to enter, the UK’s current (and long-standing) policy is that the fact that a person is HIV-positive, or has AIDS, is not in itself a ground for refusing leave to enter the UK. (Leave may, of course, still be refused if that person does not otherwise qualify for leave under the Rules.) However, the effect which a medical condition may have on a person’s ability to support himself or herself is a factor which the Immigration Officer may take into account in deciding whether to grant leave to enter.

A person who intends to remain in the UK for more than six months should normally be referred to the Medical Inspector for examination (Immigration Rules, para 36), and the inspector will be expected to estimate the cost of any treatment which may be required so that this can be considered by the Immigration Officer.

Entering the UK for medical treatment

A
person may seek leave to enter or remain in the UK in order to receive private
medical treatment. The relevant criteria are set out at paras 51-56 of the
Immigration Rules. In particular, it will be necessary for such a person to
show that he or she has sufficient funds to meet the costs of treatment. It is
also necessary that the applicant “can show, if required to do so, that any
proposed course of treatment is of finite duration” (less than six months). It
would not, therefore, normally be possible to use these provisions to seek
entry to the UK for ongoing HIV treatment, although they could, for example,
apply for leave to enter to seek treatment for an HIV-related illness.

Leave
to enter for private medical treatment will, in practice, only be a realistic
option for the relatively wealthy. Although HIV treatment is now free for
everyone in the UK, whatever their immigration status, other NHS treatment is
not automatically free for those from overseas.

Can HIV be a ground for remaining in the UK?

Where
a person is entitled to apply for leave to remain on grounds unrelated to their
HIV-positive status, then the same principle as noted earlier applies: the fact
that someone is HIV positive or has AIDS is not in itself a basis for refusing
that application.

You
may be fearful of disclosing your status. But asking for an HIV test or telling
someone you have HIV will not harm your application to enter or stay in the UK.

However,
there may be cases where a person has no other grounds to remain in the UK, but
wishes to seek discretionary leave to remain on the basis that they will not
receive adequate medical treatment in their home country.

A key
case making this claim was not successful. This means that similar cases are
unlikely to be successful if the only factor in someone’s claim to stay in the
UK as an asylum seeker is that they are living with HIV and that there may be
consequences for their health if they have to return to their home country.

This
doesn’t mean a claim will not be successful if there are other claims for
permission to stay, such as having lived here for a long time or having family
here.

There
may be exceptional circumstances where a claim of this type, without any other
factors, may be successful. This might include cases where the welfare of
children is involved, or where circumstances would make it impossible for
someone to access or adhere to treatment.

The
outcome of cases can depend on the information available to the Home Office on
the availability of HIV treatment in the country of origin.

Asylum law

There do not seem
to be any cases in the UK in which successful applications for asylum have been
made on the basis that people living with HIV have a well-founded fear of
persecution in their home country because of their HIV status. On the other
hand, some campaigners who have risked imprisonment by campaigning against a
government’s HIV policies have occasionally been granted asylum.

Recourse to public funds

People going through the
immigration process are not usually eligible for ‘public funds’, i.e. housing
assistance and most welfare benefits.

In very limited circumstances,
children or adults who need to be ‘looked after’ by the local authority may be
eligible for local authority support and/or accommodation. Usually where there
is no other assistance available, local authority social services departments
may provide accommodation, financial support and support services to children
in need and their families, and to adults who need support
because of physical or mental illness, disability or old age.

To establish whether they have a
duty to provide support, the local authority must conduct an assessment of need
alongside a test of eligibility.

Once asylum is granted

While your claim for
asylum is being examined, you may be eligible for ‘section 95’ support, which
will provide you with accommodation and cash.

If you are
considered a ‘destitute refused asylum seeker’, you may be eligible for
‘section 4’ support, consisting of accommodation and a payment card, or
accommodation and meals.

People receiving
accommodation support may be moved to (often referred to being ‘dispersed’ to)
any part of the country. There is a risk of your HIV treatment being
interrupted if this process is not carefully managed.

If you haven’t yet
started HIV treatment but need to, you may be moved quickly so you can start
treatment in the area you have been moved to. If that is not possible, you
should only be moved with the agreement of your HIV doctor, or before you have
had a chance to prepare for your move with your doctor.

You will get
additional support if you are pregnant, or if you have children who have HIV.

Access to health care

Since October 2012, all
HIV treatment has been free to all who need it, regardless of immigration
status, in England.

Nonetheless, people
with HIV may occasionally have difficulties accessing other types of health
care or be asked to pay for it – for example when needing maternity care,
kidney dialysis or cancer treatment.

GPs (family doctors) can register new patients at their discretion,
regardless of immigration or residency status. There is no obligation or
expectation that they will check someone’s immigration status. There is no
minimum period that you need to have been in the UK to be eligible.

The regulations covering healthcare arrangements for overseas visitors
(which includes people going through the immigration process, as well as people
visiting the UK) say that charges only apply to services provided in a
hospital. Primary care and other community services do not charge overseas
visitors.

However, there may be reasons why you find it difficult to register
with a GP. A GP practice may ask for certain identity documents or proof of
address, which you may not be able to provide. Your documents may be with the
Home Office, or you may not have a permanent address. Or staff may have
misunderstood the rules for providing primary care to people from overseas.

When you go to a GP practice to register, see if you can fill in a
registration form with whatever documents you do have. This could be a letter
from the Home Office or a photocopy of your passport. But a GP practice can
register you even if you don’t have any documents.

It may help to ask to speak to the practice manager or to a doctor, and
to explain the medical needs you have. You could try to encourage the practice
to use the discretion it has to register patients. Your HIV doctor could write
a letter explaining your medical need to access these GP services. If you are
refused registration, ask to be given the reason for refusal in writing.

You may want to ask someone to help you with the process. A worker from
an HIV support organisation may be able to provide advice or even come with you
to help you register. The charity Doctors of the World UK has experience of
helping migrants in London to register with GPs. See More information and advice on HIV and the lawfor contact details.

While you are trying to register as a permanent patient, you can
register as a temporary patient. You do not need a permanent address to do
this; you can use a ‘care of’ address, such as a friend or day centre. You can
also use NHS walk-in centres.

If you do experience difficulties it may help to contact your local NHS
commissioning board area team (in England), community health councils (in
Wales) health board (in Scotland and Wales), or health and social care trust
(in Northern Ireland). See More
information and advice on getting HIV treatment and care for contact
details.

The situation in Northern Ireland is different to other parts of the
UK. Here, you may find it harder or not possible to access primary care
services. Talk to staff at your HIV clinic or an HIV support organisation about
your options.

This content was checked for accuracy at the time it was written. It may have been superseded by more recent developments. NAM recommends checking whether this is the most current information when making decisions that may affect your health.

NAM’s information is intended to support, rather than replace, consultation with a healthcare professional. Talk to your doctor or another member of your healthcare team for advice tailored to your situation.